The Julian Law for the Repression of Adultery
Passed in 18 BC.
The law made adultery a crime. Previously, adultery was a private matter, to be resolved by the parties involved: the husband, his wife and her legal representative (normally her father). The law criminalised the actions of the lover as well. It placed a responsibility on a husband to prosecute an adulterous wife and her lover. It allowed a third party to prosecute an adulterous couple and further to bring charges against the husband if he had not prosecuted.
Definition of Adultery
Our understanding of adultery derives from a common moral and religious tradition. Adultery in many of our cultures is seen as a married person having sexual relations with a person other than his or her spouse. The Romans had a more complex definition.
- Adultery was a man having sex with a married woman who was not his wife or a married woman having sex with someone who was not her husband, regardless of their status. Both parties were then guilty of an offence. This meant that
- A man who had sex with a boy or with an unmarried girl of high status was not guilt of adultery, thought he did run the risk of being found guilty of stuprum or rape.
- A man who had sexual relations with a prostitute (registered) or kept a concubine of low class or had sexual relations with freedwomen or men or slaves, either his or someone else’s, was not guilty of adultery.
The penalties were extreme.
- The woman’s father could kill his daughter and the lover if they were caught in the act of sexual intercourse.
- The husband was not allowed to kill either party, but was to be treated kindly if he happened so to do.
- The husband had to divorce a wife found guilty of adultery or risk criminal charges as a pimp.
- The husband had 60 days to prosecute his wife when she was accused of adultery and if he did not do so, the case could then be taken up by someone else.
- The guilty parties were to be exiled and the woman lost half her dowry and a third of any other property she held.
- The lovers were to be exiled to different islands.
- If a woman returned from exile, she appears not to have been able to remarry.
- Men lost half their property.
Understanding this measure begins with a series of negatives.
- Romans did not have the same association of sex and sin as is common within Judaeo-Christian moral systems.
- A wife was not the property of her husband. Adultery was not a crime against property.
- Romans do not appear to have shared the genetic obsession of modern cultures. There was little obvious concern that a child might not be the biological offspring of his father.
- In itself, the law is not good evidence for the prevalence of adultery in Roman society.
Adultery was perceived as a crime against the family and the household. Rights to punish are given to the father of the woman and to her husband whose household is violated.
Romans were protected from violence by the law. This law restrained the use of violence by magistrates or other citizens. The exceptions to that were when power, potestas, was held over the citizen by a a family member, normally the father. The father could inflict punishment on those in his household. The father’s power is recognised in the law in his right to punish his daughter. The husband normally had no legal power over his wife and could not punish her. The law extended the right to violence from the daughter to include her lover. It also softened penalties against a husband who might kill his wife and her lover.
The law thus enabled extreme domestic violence.
The law allowed third-parties to prosecute in cases of adultery. It is unclear what standards of evidence could be employed in an adultery case. The law exposed a husband and his wife to malicious prosecution.
The interests of the state in preventing adultery were not explicit. Those interests might be:
- ensuring social discipline.
- ensuring the household is not violated.
- ensuring procreation.
It is the first of these which seems central. The poetry of the time and the rumoured behavior of aristocrats such as Julius Caesar (with Brutus’ mother) and, indeed, Octavian suggests that adultery was common. Notably, adultery appears not to have ruined the reputation of the woman: a woman suspected of adultery was not shunned. Charges of adulterous relation could be used to attack male politicians. It appears to have been a matter for the husband as to how seriously he took his wife’s infidelities.
Is it possible that husband’s were relaxed about their wives’ affairs?
We cannot really know. We might assume that male pride would be hurt. But people married for money and status, not love.
There was a great age difference between husbands and wives. Many men among the elite would have had sexual partners other than their wives. A wife was to bear her husband children, but once she had fulfilled that duty, might he not care very much what else she did? The fact that an indulgent husband was to be punished by the law suggests that it was not his rights that were being protected.
The penalties are severe. There was perceived to be an overwhelming state interest at stake. It is not obvious what that was. The result of the law was to make matters of the bedroom of public interest. But it also opened a couple to malicious gossip. If one wanted to politically attack a man, now one could alleged that another man had been seen alone with his wife. What would be their defence? A woman would be vulnerable if she had close male friends and Roman women mixed socially with their male peers.
It also changed the political value of sexual behaviour. A love poem became a political poem. A love affair, or even a friendship, became potentially ruinous. Gossip about a leading figure’s sexual tastes moved from being a way of making fun of them to being a way of ruining them.
But by making sex political, it also gave opponents a way of complaining about the emperor. Such divisions recalled the Antony-Cleopatra story. They could support an ‘alternative’ lifestyle by merely praising the virtues of love. Ovid was to explore the potential political resonances of love and sex in his Ars Amatoria and other love poetry and then reflected on his stance from exile. Sex became opposition.
It also made Augustus’ own sexual behaviour political. There were persistent stories about his relationship with Terentia, wife of Maecenas. Suetonius includes stories of Augustus having Roman matrons and unmarried girls paraded naked before him so that he could make his choice. He also has the best excuse ever for infidelity: Augustus supposedly slept with the wives of leading Romans so that he could learn their husband’s secrets. Whereas other men would be exiled for the crime against the state that was adultery, Augustus committed adultery for the state.